Case Document

100%Judiciary

HCAL 1150/2019

[2023] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1150 of 2019

BETWEEN
	Mehmood Shahzad	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him on 8 March 2023. However, he was absent on the hearing date. Therefore, his application is dealt with on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 6 October 2018 and was arrested by the police on the same date. On 13 and 17 December 2018 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by some Shia Muslims.

5.According to the applicant, he had been a taxi driver from 2006 to 2017. One day in the month of Muharram in 2017, when he was driving his taxi, he encountered a group of Shia Muslims who were having their religious activities. By accident, the applicant ran into some Shia Muslims and hit the leg of one of the horses reserved for the Muharram. Furious, the Shia Muslims attacked the applicant, fracturing his left arm. The applicant was later hospitalized. His elder brother attempted to file a complaint with the police station but the officers refused to accept as most of the police officers were Shia Muslims. Around six or seven weeks later, the applicant encountered two Shia Muslims and got into a fight. He assaulted them with an iron rod. Two days later, when the applicant was visiting his elder brother, his wife informed him of the visits of the Shia Muslims. She told him that they verbally threatened her for his whereabouts. They also fired gunshots at the applicant’s house. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 February 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[15]; (ii) state protection would be available to him [16]-[21]; and (iii) internal relocation was also a viable option [22]-[28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. He requested his appeal be determined without an oral hearing [4]. As a result, the Board proceeded to determine his appeal on papers without an oral hearing.

9.At the outset, the Board noted that the applicant’s claim could not be based on the disputes between Sunni and Shia Muslims because he had been living as a Sunni Muslim for 25 years without any problems and his family members, who were all Sunni Muslims, were not harassed or assaulted because of their Sunni identities. Meanwhile, the country of origin information (“COI”) did not support a clash between Sunni and Shia Muslims [2.2]-[2.3]. Thus, the Board concluded that the alleged dispute arose from a traffic incident instead of a religious dispute [2.4].

10.The Board then recapped the applicant’s claim [3.1]-[3.5]. Having considered the evidence, the Board found that there was no evidence of state involvement [7]-[9]; that there was no evidence of physical or mental sufferings that attained a minimum level of severity [10]-[12]; that the COI showed that state protection and internal relocation were both viable alternatives [14]-[18]; [29].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In the statement in support of his application, the applicant said he considered that the Board’s Decision was unfair. He had referred to the findings of the Director and the Board for his argument. Since the Court should only consider the Board’s Decision in this application, I shall therefore refer to his arguments in relation to the Board, unless the Board’s decision is related to the Director’s Decision. The following are his reasons.

(1)   The Board’s Decision is unfair and unreasonable as his right of life must be protected.

(2)   The Board had failed to give him sufficient time to prepare his evidence for the appeal.

(3)   The Board had not given sufficient consideration to state acquiescence as he was tortured at the behest of the law enforcement agencies as well as those high up of political circles. The state should be liable for it.

(4)   The Board had chosen the evidence against him, but not the evidence in his favour.

(5)   The Board had not given enough weight to the corruption and incompetency of the administration and violation of human rights in his country.

(6)   The Board had failed to attain high standards of fairness.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.As to the grounds set out in paragraph 13, they do not assist the applicant. Grounds (1), (3), (4), (5) and (6) are his bare assertions without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

18.As to ground (2), the applicant had not made any application before the Board for adjournment to give him to prepare his evidence.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 11^th day of September 2023

	(M.O. WONG)(Ms)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 11/9/2023 Mehmood Shahzad Applicant’s ref. no:		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/9/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15604/19/2/123/P3099 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 42/19 (formerly RBCZ 171/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)